Processing Requests for Reasonable Accommodation from Employees and Applicants with Disabilities

Melissa GibsonNational Reasonable

Accommodation Coordinator Outreach and Retention DivisionOffice of Diversity and Inclusion

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Learning Objectives Participants in this session will: • Learn the legal requirements for providing

Reasonable Accommodation (RA).

• Know common pitfalls.

• Be aware of VA improvement plans.

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The Rehabilitation ActThe Rehabilitation Act of 1973, as amended, requires:

• Federal agencies to provide reasonable accommodation. (Section 501)

• That federally funded or sponsored programs be fully accessible. (Section 504)

• That all electronic technology be accessible. (Section 508)

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The Legal Requirements for Reasonable Accommodation (RA)The Rehabilitation Act of 1973, as amended, requires VA to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for VA (“undue hardship”).

Note: Only the Secretary of VA can deny a request based on cost.

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Defining Reasonable Accommodation A reasonable accommodation is any

change in the work environment (or in the way things are usually done) to help a person with a disability

1. apply for a job;

2. perform the duties of a job; or

3. enjoy the benefits & privileges of employment.

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Reasonable Accommodation Includes:

• Making existing facilities readily accessible and usable by persons with disabilities.

• Job restructuring, modifying work schedules, tele-commuting, and reassignment to a vacant position.

• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

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Effectiveness of Accommodation

•VA does not have to provide the exact accommodation the employee or job applicant wants.

BUT •The accommodation provided must be

effective in meeting the needs of the employee or applicant.

What Would Be Effective for a Deaf Employee Who Uses Sign Language?

A. An employee who knows some signs.

B. A certified interpreter who has not used sign language in five years.

C. Sitting close to the speaker so he can read the speaker’s lips.

D. Letting him skip the meeting and giving him a summary afterwards.

E. A and C.

F. None of the above.

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An Individual with a Disability is a Person who:

•Has a physical or mental impairment that substantially limits one or more major life activities;

•Has a record of such an impairment; or•Is regarded as having such an

impairment.We are not required to provide accommodations to those who are regarded as having an impairment.

Individual with a Disability•Federal agencies are required to provide

accommodations to individuals with disabilities.

•An impairment is only a "disability" under the ADA if it substantially limits one or more major life activities.

•An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

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Illustrating Definition of Disability

•Impairments for which an

individualized assessment can

be conducted quickly and

easily, and that will

consistently result in a

determination that the person

is substantially limited in a

major life activity:

•Deafness;•Blindness;•Intellectual disability (formerly known as mental retardation);•Partially or completely missing limbs;•Mobility impairments requiring use of a wheelchair; •Autism;•Cancer;•Cerebral palsy;•Diabetes;•Epilepsy•HIV/AIDS;•Multiple sclerosis;•Muscular dystrophy;•Major depression;•Bipolar disorder;•Post-traumatic stress disorder;•Obsessive-compulsive disorder; and•Schizophrenia.

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Substantially Limits• The regulations provide three factors to consider

in determining whether a person's impairment substantially limits a major life activity. ▫its nature and severity;▫how long it will last or is expected to last;▫ its permanent or long term impact, or expected

impact.• Sometimes, an individual may have two or more

impairments, neither of which by itself substantially limits a major life activity, but that together have this effect. In such a situation, the individual has a disability.

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Major Life Activities• MLAs include major bodily functions,

such as:▫ Functions of the immune system;▫ Normal cell growth;▫ Digestive; ▫ Bowel▫ Bladder▫ Neurological;▫ Brain;▫ Circulatory;▫ Respiratory;▫ Endocrine;▫ Hemic; ▫ Lymphatic▫ Musculoskeletal;▫ Special sense organs and skin;▫ Genitourinary;▫ Cardiovascular systems; and▫ Reproductive functions.

• MLAs also include:▫ Caring for oneself;▫ Performing manual tasks; ▫ Seeing; ▫ Hearing; ▫ Eating; ▫ Sleeping;▫ Walking; ▫ Standing; ▫ Lifting;▫ Bending;▫ Speaking; ▫ Breathing; ▫ Learning; ▫ Reading; ▫ Concentrating;▫ Thinking; ▫ Communicating; ▫ Sitting; ▫ Reaching, ▫ Interacting with others; and ▫ Working.

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Temporary Impairments•How long an impairment lasts is a factor to be

considered, but does not by itself determine whether a person has a disability under the ADA.

•Under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary.

•Because of the expansion of this law, the determination of whether or not an individual has a disability should be made on a case-by-case basis.

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Impairments that Are Episodic or in Remission

•An impairment that is “episodic” or “in remission” is a disability if it would substantially limit a major life activity when active. •Except for “ordinary eyeglasses or contact lenses,” mitigating measures, such as medication or hearing aids should not be considered.•If a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that fact cannot be used in determining if a person meets the definition of disability

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Essential Duties•The employee must be able to perform the

essential duties of the job, with accommodation if necessary.

•The essential duties are those which are the core purpose of the job, the ones for which the individual’s education, experience, and/or skills are valued.

•Speaking orally is not an essential duty for most positions except receptionist or phone bank.

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Determining Essential Duties• Factors to consider in determining if a function is

essential include:

▫Whether the reason the position exists is to perform that function,

▫The number of other employees available to perform the function or among whom the performance of the function can be distributed, and

▫The degree of expertise or skill required to perform the function.

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Determining Essential Duties• Your judgment as to which functions are essential, and a

written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

▫ The actual work experience of present or past employees in the job,

▫ The time spent performing a function, ▫ The consequences of not requiring that an employee

perform a function, and ▫ The terms of a collective bargaining agreement.

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Drug Use and Disability•Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. •The illegal use of drugs includes the use, possession, or distribution of drugs which are unlawful under the Controlled Substances Act. It includes the use of illegal drugs and the illegal use of prescription drugs that are "controlled substances”.

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Drug Use and Disability cont’d• The ADA says that a person who no longer

engages in the illegal use of drugs may be an individual with a disability if he or she:▫ Has successfully completed a supervised drug

rehabilitation program or has otherwise been rehabilitated successfully, or

▫ Is participating in a supervised rehabilitation program ( e.g., Alcoholics Anonymous or Narcotics Anonymous).

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Pregnancy under the ADAAA• Pregnancy is not an impairment and

therefore cannot be a disability. • Certain impairments resulting from

pregnancy ( e.g., gestational diabetes), however, may be considered a disability if they substantially limit a major life activity, or if they meet one of the other two definitions of disability discussed.

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Direct Threat• An employer may require that an individual not

pose a "direct threat" to the health or safety of himself/herself or others.

• A health or safety risk can only be considered if it is "a significant risk of substantial harm." Employers cannot deny an employment opportunity merely because of a slightly increased risk.

• An assessment of "direct threat" must be strictly based on valid medical analyses and/or other objective evidence, and not on speculation.

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Requests•The accommodation process begins as soon as the request for a change related to a disability is made. •The request can be oral or written, and made by an individual with a disability or by a family member on their behalf.•The words “reasonable accommodation” do not have to be used in making the request.•The request can be made at any time.•Once an employee has indicated that an accommodation is needed, the interactive process must begin.

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Requests cont’d•Ideally, the interactive process should happen between the employee and the DMO.•The DMO should inform the LRAC of the request and consult for guidance, if necessary.•The LRAC will enter the request into RACS and document the necessary steps and that the timelines have been adhered to.•The LRAC will be POC for any CAP purchases, if necessary•Consult with RC, OGC, or NRAC before issuing a denial.

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Could This be an Accommodation Request?

A. An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing."

B. A new employee informs the employer that her wheelchair cannot fit under the desk in her office.

C. An employee tells his supervisor that he would like a new chair because his present one is uncomfortable.

D. A and B

E. All of the above.

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EEOC Opinions• Agencies must be able to show that they

engaged in the interactive process.

• Decisions must be based on the specific facts related to the requestor and not on generalizations.

• Deaf employees who rely on sign language must receive interpreters or other accommodations for important meetings.

• Ignoring a request is the equivalent of denying one.

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Accommodation Basics• The whole process should take no more than 30

calendar days for employees and 10 calendar days for applicants.

• Documentation may be requested ONLY if the disability is not obvious and is not on file at VA.

• “Updated” documentation may be requested ONLY if the functional limitations have changed or the physician said the employee would be re-evaluated.

• The interactive process is required, except for recurring requests, such as for sign language interpreters.

Accommodation Basics, continued•The regional OGC or ODI must be

consulted before issuing a denial of a request for accommodation.

•Accommodations for new employees should be installed and tested before the individual comes on board.

•If an accommodation does not work, the agency has an obligation to explore alternative accommodations.

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Performance or Conduct Issues•If an employee has a performance or conduct

issue, the supervisor should meet with the employee (any employee) and mention the specific problem and ask “Is there anything I can do or change that would help you address this problem/improve your work?”

•This allows the employee to ask for an accommodation for a disability.

•Use this method before creating a Performance Improvement Plan or other adverse action.

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ReassignmentWhen an effective accommodation can’t be found, the employee should be reassigned to another position (accommodation of LAST RESORT).• The employee is given an opportunity to state any

limitations on the search.• The employee should be guided in creating a

Federal resume, if s/he does not have one.• The resume should be matched to funded

vacancies.• When a vacancy is identified for which the

employee qualifies, the employee should be placed into the funded vacancy with no competition.

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Interim Accommodations

•When there will be a delay due to extenuating circumstances, and the disability is known or documented, the agency should work with the employee to identify an interim accommodation.•An interim accommodation should be provided immediately if the employee reports that an aspect of his/her current duties is causing pain or aggravation of a medical condition.•In some cases, an interim accommodation will mean a temporary reassignment to another position or telework.

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Extenuating CircumstancesProcessing an accommodation request may be delayedonly by circumstances outside the control of VA, suchas:

▫Equipment is backordered.▫The vendor normally used has gone out of business.▫Various options need to be tested by the employee to

determine which one is most effective.

Circumstances that may not be used to delay a request:▫Absence of the DMO or LRAC.▫Request was forgotten.▫Confusion over the process.

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Privacy Issues•The disability, the request, and the accommodation must all be kept confidential.•This information may not be shared with other employees. If they ask, the manager can say “Some decisions are made on a case by case basis. If you ever shared a personal situation with me, I would respect your privacy as well.”•This information should not be left on a desk for other employees to see, or discussed in front of other employees.•Even when a disability is obvious, it is up to the employee whether to share.

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Which of the following can adversely impact the outcome of an EEO complaint?

A. Exceeding the timeline for processing and granting/denying a request.

B. Failing to maintain confidentiality of medical documentation and disability information.

C. Failing to engage in the interactive process.

D. All of the above.

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Manager & Supervisor Responsibilities • Respond promptly. • Engage in the interactive process.• Ensure that VA’s procedures are followed.• Provide interim accommodations if there will be a

delay.• Cooperate with HR when an employee must be

reassigned as an accommodation.• Ensure that each step is documented and the

accommodation or denial is provided within 30 days.• Provide all information to the LRAC to file in a locked

cabinet.

LRAC Responsibilities• Understand VA’s accommodation procedures.

• Guide managers through the procedures.

• Keep track of the number of days that elapse; ensure that the process is completed as quickly as possible.

• Keep the employee informed at each step.

• Know who to contact if guidance is needed.

• Lock the disability/accommodation files separately from the OPF.

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The LRAC’s Resources• The Job Accommodation Network (askjan.org)

• The DoD’s Computer/Electronics Accommodation Program (CAP)

• The facility’s EEO Officer (if that person is not the LRAC).

• The regional EEO Officer.

• The regional Office of General Counsel.

• The Administration’s EEO Office.

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Common Pitfalls•Asking for updated medical documentation for the same accommodation.•Ignoring the request.•Making an assumption about what is needed.•Treating the employee as a “problem.”•Sharing the disability information with other employees.•Leaving the employee out of staff meetings and training “because it is too hard” or “too expensive” to provide accommodation.

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Reminders•If an employee was on OWCP and is ready to return to work, accommodation is a separate process and should be explored.•By regulation, employees with mobility impairments have priority over all other groups when parking spaces are assigned; they should be given the closest spaces. •ODI’s Centralized Fund will reimburse the cost of disability accommodations that cannot be obtained from DoD’s Computer/Electronics Accommodation Program.

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ADA Amendments Act (ADAAA)•The ADAAA states that the definition of disability should be interpreted broadly, expanding the coverage.•It dropped ‘‘a qualified individual with a disability.’’•The determination of disability should not require extensive analysis.•Reasonable accommodation is only provided to those with a disability or a record of a disability.

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Updates• In FY 2012, VA launched an automated system for

tracking requests for disability accommodations.

• Applicants and employees will have the ability to enter their requests, which will be stored in the system.

• The clock will start when the request is entered.

• Local Reasonable Accommodation Coordinator will enter each step as it occurs.

• The system will provide prompts to ensure that the correct process is followed.

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VA Handbook 5975.1 Forms•0857a, Written Confirmation of Request:

voluntary for the employee to complete

•0857b, Acknowledgement of Receipt of Request: to be completed by DMO or LRAC

•0857c, Approval of Interim Accommodation: to be completed by LRAC

•0857d, Administrative Closure of Accommodation Request : to be completed by LRAC

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VA Handbook 5975.1 Forms cont’d•0857e, Request for Medical Documentation:

to be completed and returned to LRAC

•0857f, Accommodation Request Determination: to be completed by DMO

•0857g, Denial of Accommodation Request: to be completed by DMO in consultation with LRAC and RC, OGC, or NRAC

•0857h, Employee Limitations on Reassignment Options: to be completed by employee

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VA Handbook 5975.1 Forms cont’d

•0857i, Centralized Accommodation Fund Application: to be completed by LRAC

•0857j, Offer of Reassignment: to be completed by HRO or LRAC

•0857k, Authorization for Limited Release of Medical Information: to be completed by LRAC but employee MUST sign

VA Case •Complainant was in a serious auto accident

where she suffered a skull fracture, two broken ribs, a broken left ankle, other broken bones, and internal injuries.

•She requested up to four months of LWOP under the FMLA in order to recuperate.

•The Associate Director denied the request because the complainant had not worked a the facility long enough to be granted the request.

•Termination was recommended due to her inability to perform the functions of her position.

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What Have You Learned?Was this an appropriate reasonable accommodation request? What could have been done differently?

• The Office of Employment Discrimination Complaint Adjudication (OEDCA) found that the request for leave under FMLA was a request for reasonable accommodation.

• The agency’s termination of the complainant without initiating the interactive process to identify possible accommodations violated the Rehabilitation Act.

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VA Case # 2

•A Program Support Assistant was moved from a private office to a shared space with more distractions.

•The employee was given a PIP in April, 2008. The supervisor was to provide weekly one hour on the job training, but did not do so.

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Program Support Asst., continued

•The employee, who had PTSD, requested accommodation in May, 2008. In September 2008, the employee was required to submit additional medical documentation.

•Early 2009, the employee was demoted and all staff informed of the demotion via email.

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What Have You Learned?Did this facility violate the Rehab Act? Why, or why not? What could have been done differently?

• OEDCA found violations of the Rehabilitation Act.

• The agency may only seek documentation which is necessary to establish that the employee is an individual with a disability and needs the accommodation requested.

• The agency claimed that there was “no way” to provide a private work space, but provided no evidence to support this statement.

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VA Case #3•A Patient Support Assistant was an

amputee who parked on site for 2 ½ years. Due to construction in August, 2009, she was assigned to a parking space in a satellite parking lot, with shuttle service.

•The DMO did not engage in the interactive process to determine if the change would accommodate her effectively. Instead, he characterized her request as that of a disgruntled employee.

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Patient Support - Continued

•The employee’s request for an on-site parking space was denied.

•The VAMC presented no evidence that on-site parking was would be an undue hardship.

•The VAMC cited the facility’s parking policy to justify its actions.

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What Have You Learned?What could the facility do to address this parking related Reasonable Accommodation request? Were their actions justifiable?

• The Agency failed to provide a reasonable accommodation and did not establish a legal defense for its actions. The Rehabilitation Act trumps any agency or facility policy.

• The DMO engaged in reprisal per se when he told the investigator that he was “appalled and disgusted” at how the complainant was abusing the EEO process.

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VA Case # 4•Complainant was a GS 7 Program Support

Assistant, and had been a VA employee for 20 years.

•May, 2008, the complainant submitted a request for 10 – 12 weeks of LWOP for hip replacement surgery to relieve her constant pain.

•Her second level supervisor informed her that

he was going to recommend that her request be denied because it was “elective” surgery.

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Program Support Assistant, cont.

•The second level supervisor also suggested that she retire before she was terminated for abusing her leave.

•Complainant maintained that she was subjected to age and disability discrimination when her request for LWOP was denied and when she was forced to retire in lieu of termination.

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What Have You Learned?Were the actions taken appropriate? What could the facility have done differently?

• OEDCA found for the employee.• All prior leave usage had been approved, so

there is no substantiation that the agency thought she was abusing her leave.

• The suggestion that she postpone the surgery until she accumulated enough leave was unrealistic, as it would have taken 2 – 4 years.

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ResourcesVA Acting Disability Program Manager/NationalReasonable Accommodation CoordinatorMelissa.Gibson@va.gov

VA’s Disability Program web sitehttp://www.diversity.va.gov/programs/pwd.aspx

Job Accommodation Networkwww.askjan.org

Computer/Electronic Accommodations Programwww.cap.mil

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